This Week’s Brief: June 17

(Note: Please excuse this almost-late, sometimes-technicality-filled post; the Court—I admit, as was expected—went bonkers with opinions this week, meaning my undergraduate brain was ground to a pulp late-night after late-night as I read 577 pages of law and wrote over 7500 words here to summarize. But all in the spirit of learning, though—right? Plus, we get to look forward to this again next week. Yippee!)

Cue the commentator’s announcement: “On the final lap, here they come into turn four, all bunched up!” Indeed. We are into the final two weeks of O.T. 2018, and the Court released a dozen—yes, a dozen—opinions this week, grouped into fours on Monday, Thursday, and Friday. In addition, the Court sent back to the lower court a hot-button, LGBTQ vs. religious liberty case from Oregon; granted and consolidated five cases concerning President Barack Obama’s appointments to Puerto Rico’s financial oversight board; and denied a petition for a stay of execution. All told, I will do my level best to briefly canvass the bevy of activity that took place this week at 1 First St. NE, Washington D.C. But—forgive the pun—don’t bet on this week’s “brief” to be very brief. Here’s your brief for the week of June 17.

Statistics

This Week:
Opinions: 12 (4 on Monday, 4 on Thursday, 4 on Friday)
Cert. Grants: 1

O.T. 2018:
Cases Decided: 57
Cases Remaining: 12
Weeks Left in Term: 1

Monday

Orders:

The first order of business this week is the Court’s orders list from its June 13 conference. The Court did not grant any new cases (it did do so on Thursday). It did, however, issue an order in a high-profile petition, Klein v. Oregon Bureau of Labor & Industries, which has been a mainstay on my “high-profile petitions” list. Klein concerns a bakery owner’s First Amendment religious objection to designing and creating a custom wedding cake for a same-sex wedding, a case akin to last term’s Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n. The Justices—with no noted dissents—granted the petition, vacated the prior judgment, and immediately remanded the case back to the Oregon Court of Appeals “for further consideration in light of Masterpiece Cakeshop.” In other words, the Supreme Court told the Oregon Court of Appeals to look at the case again and determine whether any of the lower courts demonstrated a “clear and impermissible hostility” toward the bakery owner’s sincere religious beliefs. (This was the ground on which the Masterpiece Cakeshop Court came to its conclusion.) So, if you said the Court is just buying time before deciding whether to take up this sort of case again, I’d say you’re spot on. More on the Court’s order in Klein is available from Amy Howe at SCOTUS Blog.


Opinions:

Manhattan Community Access Corp. v. Halleck
The first of the Court’s twelve opinions this week (and of four on Monday) comes in Manhattan Community Access Corp. v. Halleck. If you have cable TV, chances are you will find a few public access channels. Under the 1984 Cable Communications Policy Act (47 U.S.C. §531 et seq.), state and local government may require cable companies to set aside some channels for public access. These eponymously-named channels allow the public to submit TV programs to the cable operator or local government, who then airs some of the programs.

In Manhattan, New York, these public access channels are controlled by the Manhattan Neighborhood Network (MNN), a private nonprofit corporation. DeeDee Halleck and Jesus Papoleto Melendez created and submitted to MNN a film, which documented MNN’s alleged neglect of East Harlem. After airing the film and receiving numerous complaints, MNN pulled the film from the air and suspended Halleck and Melendez from using the public access channels. Halleck and Melendez, in response, sued MNN under the First Amendment. They claimed that MNN had violated their right to free speech by enjoining their access to the channels due to the nature of their film. The question before the Supreme Court was whether private companies who operate public access channels, like MNN, are “state actors” subject to the First Amendment.

Justice Kavanaugh, writing for a 5:4 majority, answers that they are not. The Free Speech Clause of the First Amendment mandates that “Congress shall make no law . . . abridging the freedom of speech.” But while the government cannot restrict your speech (with a few exceptions), a private company can. In Kavanaugh’s words, “[t]he Free Speech Clause prohibits only governmental abridgment of speech”; it “does not prohibit private abridgment of speech” (emphasis in original).

To distinguish between who is a state actor subject to the First Amendment and who is a private actor not so subject, the Court applies the “state-actor doctrine.” That doctrine, as relevant here in Halleck, provides that a private actor may be considered a state actor only if it does something “traditionally exclusively reserved to the state” (quoting Jackson v. Metropolitan Edison Co. (1974)). But MNN, by operating Manhattan’s public access channels, is not doing something “traditionally exclusively reserved to the [S]tate” of New York, Kavanaugh holds. To qualify as a traditional and exclusive public function under the state-action doctrine, the function must have been both traditionally and exclusively performed by the state. That is, the state must have performed the function in the past (“traditionally”) and only the state must have done so (“exclusively”). As one might expect from such narrow specifications, “‘very few’ functions fall into that category” (quoting Flagg Bros., Inc. v. Brooks (1978)), and operating public access channels does not. Public access channels first came into operation in the 1970s, and a “variety of private and public actors have operated public access channels” ever since. Thus, while states have operated them in the past, they have not done so exclusively.

Kavanaugh also disposes of Respondents’ backup arguments. He sees right through their attempt to “widen the lens” and look at the case as if the principal function is not just the operation of public access channels, but the operation of a broader public forum for speech. Next, just because the State of New York “heavily regulates MNN with respect to the public access channels,” as Respondents contend, “do[es] not establish that MNN is a state actor.” And as for the public access channels themselves, the channels are “the property of Time Warner [and] MNN,” not the property of New York City, as Respondents also submit. Time Warner owns the cable network, which contains the channels. MNN operates those channels using its own equipment and facilities. “Nothing in the record here suggests that a government (federal, state, or city) owns or leases either the cable system or the public access channels at issue here,” Kavanaugh maintains.

For these reasons, Kavanaugh holds, “[a] private entity such as MNN who opens its property for speech by others is not transformed by that fact alone into a state actor,” and thus is not subject to Free Speech claims. Chief Justice Roberts and Justices Thomas, Alito, and Gorsuch joined Kavanaugh in the majority.

Justice Sotomayor—joined by Justices Ginsburg, Breyer, and Kagan—dissented in an opinion longer than the majority’s. She comes roaring out of the gate, declaring that the “Court tells a very reasonable story about a case that is not before us,” and she “write[s] to address the one that is.” Sotomayor sees the situation in the following way: New York City contractually “appointed” MNN to run in its place the public access channels, which she views are a public forum under the State’s own regulations. So, when MNN accepted the contract, it “stepped into [New York] City’s shoes and thus qualifies as a state actor” under the state-actor doctrine, “subject to the First Amendment like any other.”

Virginia Uranium, Inc. v. Warren
The second decision on Monday comes in Virginia Uranium, Inc. v. Warren, a long-awaiting case that was argued in the November sitting. Virginia Uranium, Inc. (VUI) wanted to mine from a uranium deposit in Coles Hill, Virginia, but Virginia state law does not allow uranium mining anywhere in the state. To get over this hump, VUI challenged the state law under the Supremacy Clause of the Constitution. VUI claimed that the 1954 Atomic Energy Act (AEA) preempts Virginia’s ban on uranium mining and devolves all regulatory authority of uranium mining on the Nuclear Regulatory Commission (NRC).

Six of the nine Justices disagree, but those six split evenly as to why. Justice Gorsuch had the narrowest holding, and therefore announced the judgment of the Court and wrote an opinion in which Justices Thomas and Kavanaugh joined. First, Gorsuch addresses VUI’s claim that the State of Virginia cannot regulate uranium mining—only the NRC can. The AEA certainly vests the NRC with “extensive and exclusive authority to regulate nearly every aspect of the nuclear fuel life cycle,” but it has one notable exception: mining. “[W]hen it comes to mining,” Gorsuch says, “the [AEA] speaks very differently, expressly stating that the NRC’s regulatory powers arise only ‘after [uranium’s] removal from its place of deposit in nature'” (emphasis added) (citing 42 U.S.C. §2092). Thus, the NRC only regulates what happens to uranium after it is mined; it does not regulate the mining of uranium itself, as VUI contends. The NRC may regulate uranium mining on federal land, but the Coles Hill uranium deposit is located on private land.

Justice Ginsburg (who was joined by Justices Sotomayor and Kagan) agree with Gorsuch that the AEA did not preempt Virginia state law. Where Ginsburg differs, however, has to do with a prior case, Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm’n (1983). As relevant, the PG&E Court advocated against looking to a state legislature’s purpose in enacting a nuclear fuel regulation (even though the PG&E Court did so in that case). Gorsuch not only distinguishes Virginia Uranium from PG&E—and thus declined to look at the Virginia legislature’s purpose in enacting the statewide ban on uranium mining—but also displays a strong aversion to looking at state legislative purpose in later cases. Ginsburg agrees that PG&E need not be applied here in Virginia Uranium. She does not, however, share Gorsuch’s broad skepticism of state legislative purpose, noting that “his discussion of the perils of inquiring into legislative motive . . . sweeps well beyond the confines of this case.”

Finally, Chief Justice Roberts, with whom Justices Breyer and Alito join, dissents. Roberts feels that Gorsuch ducks the real issue. “No party disputes” Gorsuch’s conclusion that the AEA has not preempted the field of uranium mining. But that was not the “question we agreed to address,” Roberts counters. That question was whether a state (like Virginia) could pretend to regulate a non-preempted field (like uranium mining) as a pretense for actually regulating other fields that are preempted (like safety concerns about leftover radioactive tailings). That question, in Roberts’ mind, should be clear: of course not. Put differently, processing uranium ore requires three steps: mining, milling, and storing tailings. The AEA has not preempted the field of mining, but it has preempted the fields of milling and storing tailings. To Roberts, the question presented in Virginia Uranium is not simply whether the AEA has preempted the field of mining, a question to which Gorsuch (and, to Roberts, everyone else) answers “no.” Rather, the question is whether Virginia can purport to regulate the non-preempted field of uranium mining as a guise for regulating the preempted fields of milling and storing tailings, a question to which Roberts answers “no.”

Gamble v. United States
The third opinion on Monday, and the first blockbuster opinion of the week, comes in a Fifth Amendment case, Gamble v. United StatesGamble concerns the constitutionality of the dual-sovereignty doctrine, an exception to the Double Jeopardy Clause. Justice Alito, writing for a 7:2 majority, declined to overrule the longstanding dual-sovereignty doctrine, instead holding that it follows from the plain text of the Fifth Amendment and is thus constitutional. Justice Thomas concurred, and Justices Ginsburg and Gorsuch each filed dissenting opinions. You can read more about the Court’s decision in Gamble at my Blockbuster Review No. 4.

Virginia House of Delegates v. Bethune-Hill
Virginia House of Delegates v. Bethune-Hill is the first decision from the Court’s three gerrymandering cases this term. (Note that Bethune-Hill concerns racial gerrymandering, while the other two concern partisan gerrymandering. The partisan gerrymandering cases will be decided next week.) In 2010, Virginia redrew the borders of its legislative districts for the State’s Senate and House of Delegates. However, residents in twelve of the districts sued, arguing that Virginia had redrawn the maps based on race (“racial gerrymandering”) in violation of the Equal Protection Clause of the Fourteenth Amendment. The federal district court held that eleven of the twelve districts were racially gerrymandered and barred the State from holding elections in those districts until their borders were drawn constitutionally. Virginia’s Attorney General then announced the State would accept the ruling and would not appeal it. But the Virginia House of Delegates decided it would appeal the ruling on its own. The question presented before the Supreme Court was, effectively, whether the House could do so (that is, whether the House had standing to sue).

Justice Ginsburg, writing for a 5:4 majority, answers that the House does not have standing to sue—either as a representative of the whole State or simply by itself—and therefore tosses the appeal. Ginsburg first debunks the House’s argument that it can appeal on behalf of the State. It is well settled that a “State has standing to defend the constitutionality of its [own] statute,” and, thus, “the State itself could press this appeal.” But under Virginia’s own state law, the decision of whether to appeal a civil case rests solely with the State’s Attorney General, who declined to appeal. Thus, Virginia’s House “has not identified any legal basis for its claimed authority to litigate on the State’s behalf.”

The House’s secondary argument, if it could not represent the State of Virginia, was that it could still go it alone and bring the case on its own right. But Virginia has a bicameral legislature—its House of Delegates and its Senate. Ginsburg stresses that the Court “has never held that a judicial decision invalidating a state law as unconstitutional inflicts a discrete, cognizable injury on each organ of government that participated in the law’s passage,” a sort of injury required to obtain standing (emphasis added). Therefore, Ginsburg concludes, there is “no support for the notion that one House of a bicameral legislature, resting solely on its own role in the legislative process, may appeal on its own behalf a judgment invalidating a state enactment.”

Justices Thomas, Sotomayor, Kagan, and Gorsuch joined Ginsburg’s majority opinion in what turns out to be an ideologically scrambled lineup.

Justice Alito, joined by Chief Justice Roberts and Justices Breyer and Kavanaugh, disagreed. Alito accords with Ginsburg in that Virginia’s House alone cannot appeal on behalf of the entire State, but he differs on her conclusion that the House also cannot appeal on its own right. Ginsburg concludes that the House did not suffer the required “injury in fact” to obtain standing. This is where Alito disagrees, as he argues that the lower court’s order to redraw the maps would sufficiently “harm the House in a very fundamental way.” Alito writes that a representative body like Virginia’s House exists to “represent and serve the interests of the people,” and “the way in which its members are selected has a powerful effect on how it goes about this purpose” (footnote omitted). As far as standing is concerned (not the merits of the case), “we must assume that the [original] districting plan . . . embodies the House’s judgment regarding the method of selecting members that best enables it to serve the people.” “It therefore follows,” says Alito, “that discarding that plan and substituing another inflicts injury in fact.”

Tuesday–Wednesday

The Court held no proceedings on Tuesday and Wednesday.

Thursday

Orders:

The Court issued a rare Thursday order in which it granted five cases and consolidated them into one case, Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC, to be argued next term. In 2016, Puerto Rico found itself in a $110 billion heap of debt. To get the island back on its feet, Congress created the independent Financial Oversight and Management Board, which was staffed by officers whom President Barack Obama appointed before his second term ended. The officers were not, however, confirmed by the Senate. Aurelius Investment, LLC, among others, challenged the constitutionality of the officers’ appointments under the Appointments Clause of Article II, Section 2 of the Constitution. The Court will decide (1) whether their appointments were constitutional and (2) whether to apply the “de facto officer doctrine” (if it doesn’t apply it, the Court may invalidate the work of the Board thus far).

The Court also denied a petition for a stay of execution from Marion Wilson, Jr., a Georgia death row inmate. There were no noted dissents. Wilson was convicted of murder in 1997 and sentenced to death. Though he was with his friend at the murder site, Wilson had maintained that his friend had pulled the trigger and committed the crime, not him. Wilson had sought to use a new method of DNA-evidence testing, which was not available at the time of his trial, and had challenged his execution under the Eighth and Fourteenth Amendments.


Opinions:

Gundy v. United States
Perhaps the most anticipated administrative law case of O.T. 2018 comes in Gundy v. United States. Also of note, Gundy gets the award this term for the “Case That Took the Longest to Decide”, as it was argued back in the October sitting before Justice Kavanaugh was confirmed to the bench (consequently, Kavanaugh did not participate or vote in the decision). Gundy concerns the (until now) long-dormant “nondelegation doctrine.”

Article I of the Constitution gives all legislative powers to Congress. However, all three branches of government have recognized—as the Court put it in Mistretta v. United States (1989)—that “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives” to Executive Branch agencies. This is the nondelegation doctrine. (Perhaps it should be the inverse, the “delegation doctrine”? I’ll have to petition the Court.) The sole issue the Court has faced regarding this doctrine is the type and amount of delegability to be permitted—in other words, how much Legislative delegation to the Executive is too much? Throughout its history, the Court has held impermissible only two delegations of Legislative authority—both in 1935 as part of Franklin D. Roosevelt’s New Deal—and it has not struck down a delegation since.

The delegation at issue in Gundy stems from the 2006 Sex Offender Registration and Notification Act (SORNA). Under SORNA, Congress has the authority to prescribe rules for how and when to register as a sex offender. A subsection of SORNA (34 U.S.C. §20913(d)) talks about individuals who were convicted of a sex offense before SORNA’s enactment (“pre-Act offenders”). Under Subsection (d), Congress delegates to the U.S. Attorney General (AG) the authority to “specify the applicability” of SORNA’s registration requirements and “to prescribe rules for [their] registration.” Pursuant to this delegated authority, former AG Michael Mukasey issued a rule in 2007 stating that SORNA’s registration requirements applied in full to all pre-Act offenders. Herman Gundy, a pre-Act offender, challenged this rule on the ground that Subsection (d) was an exorbitant and unconstitutional delegation of authority to the Executive Branch.

Justice Kagan, writing for a 5:3 majority (remember, Kavanaugh did not vote) disagrees and upholds the constitutionality of Subsection (d) under the nondelegation doctrine. The Court has long held that a delegation of authority is permissible so long as Congress “lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise that delegated authority] is directed to conform” (quoting Mistretta). Thus, Kagan begins, the question in Gundy is whether Congress has furnished the AG with an intelligible principle that delineates the boundaries within which the AG may operate when exercising his authority under Subsection (d). Mr. Gundy argues that there is no such principle—that the AG has “unguided” and “unchecked” authority to determine SORNA’s applicability to pre-Act offenders.

But Kagan disagrees, and she points to the Court’s prior decision on this point in Reynolds v. United States (2012). In Reynolds, the Court construed Subsection (d), determining that SORNA’s registration requirements applied to pre-Act offenders “once the [AG] said they did.” In reaching that conclusion, the Reynolds Court “made clear how far SORNA limited the [AG’s] authority.” The AG “was to apply SORNA to pre-Act offenders as soon as he thought it feasible to do so” (emphasis added). Thus, in this sense, Congress had already made clear that SORNA was to apply to pre-Act offenders; the only question was when, and the answer was when the AG thought it feasible.

In coming to this conclusion, Kagan writes, “we effectively resolved the case now before us.” “There was no need,” Kagan continues, “for Congress to worry about the unrealistic possibility that the [AG] would refuse to apply those requirements on some excessively broad view of his authority under [Subsection (d)]” (internal quotation marks omitted). She concludes, saying that when SORNA is “reasonably read,” it “enabled the [AG] only to address (as appropriate) the ‘practical problems’ involving pre-Act offenders before requiring them to register.” Put differently, Subsection (d) was only a “stopgap[] and nothing more,” not a permanent, excessive delegation of authority to the Executive as Mr. Gundy contends.

With this knowledge, Kagan says, the Court can now conclude that Subsection (d)’s delegation of authority to the AG—to apply SORNA’s registration requirements to pre-Act offenders when he thought it feasible—is not overbroad and hence is not a violation of the nondelegation doctrine. The Reynolds Court clearly identified the “intelligible principle” Congress set out to guide the AG’s delegated authority under Subsection (d), and that authority is not overbroad.

Justice Alito penned a brief, three-paragraph concurrence. Alito writes that he would support reconsidering the approach with which the Court adjudges nondelegation doctrine cases “[i]f a majority of this Court were willing to” do so. However, since five Justices “are not willing to do that,” Alito admits it would be “freakish” to “single out” SORNA for “special treatment.” In any case, since SORNA meets the nondelegation doctrine requirements the Court has set out for many years, Alito concurs.

Justice Gorsuch wrote a 33-page dissent (nearly twice as long as Kagan’s majority opinion), which was joined by Chief Justice Roberts and Justice Thomas. If Kagan was on one end of the spectrum, Gorsuch stands on the complete opposite end. SORNA, Gorsuch says, “purports to endow the nation’s chief prosecutor with the power to write his own criminal code.” It gives the AG “unfettered discretion to decide which requirements to impose on which pre-Act offenders.” It says “nothing about feasibility” (emphasis in original). And no language in SORNA itself, its stated purpose, its definitional terms, or its legislative history reins in the authority it delegates to the AG or lays out an “intelligible principle” by which to exercise that authority. Thus, Gorsuch would hold Subsection (d) is an impermissibly broad delegation of authority to the AG.

McDonough v. Smith
The second opinion on Thursday comes from Justice Sotomayor for a 6:3 majority in McDonough v. SmithMcDonough is a statute-of-limitations case that concerns when the limitation periods begins to run for a fabrication-of-evidence claim. The question presented was, under federal law (42 U.S.C. §1983), whether the clock begins to run as soon as the plaintiff becomes aware of the fabricated evidence against him, or whether it begins to run after the criminal proceedings against him end in his favor.

Justice Sotomayor, writing for a 6:3 majority, sided with the latter—the limitations period for a §1983 claim starts when the criminal proceedings against the plaintiff terminate in his favor. First, this conclusion stems from a type of common-law tort the Court analyzed in Heck v. Humphrey (1994). Relying on Heck, McDonough argues that his fabricated-evidence claim is analogous to the common-law tort of “malicious prosecution,” for which the limitations period begins to run “only once the underlying criminal proceedings have resolved in the plaintiff’s favor,” and Sotomayor agrees. Such a timetable, she continues, “avoid[s] parallel criminal and civil litigation over the same subject matter and the related possibility of conflicting civil and criminal judgments.” In addition, Sotomayor notes, starting the limitations period as soon as the plaintiff becomes aware of the fabricated evidence “would create practical problems in jurisdictions where prosecutions regularly last nearly as long as—or even longer then—the relevant civil limitations period.” For these reasons, Sotomayor concludes that the statute-of-limitations for a §1983 claim begins to run when the underlying criminal proceedings against the plaintiff conclude in his favor. Chief Justice Roberts and Justices Ginsburg, Breyer, Alito, and Kavanaugh joined her majority opinion.

Justice Thomas writes a short, three-page dissent, and is joined by Justices Kagan and Gorsuch. Thomas would DIG (dismiss as improvidently granted) the case for the following reason: To bring a §1983 claim, a plaintiff must identify his constitutional right (1) that was infringed by the underlying proceedings and (2) on which a court may adjudge his civil action. But, in Thomas’ view, McDonough failed to clearly identify his violated constitutional right, which “”profoundly complicates our inquiry.” Thus, the Court in Thomas’ mind should not even address the merits question about when the clock begins ticking for a §1983 claim, hence his dissent.

American Legion v. American Humanist Association
The third opinion on Thursday—and the second blockbuster opinion of the week—comes in a case concerning a 32-foot-tall Latin cross in Bladensburg, Maryland. The “Peace Cross,” as it is called, was built in 1918 and was owned by the American Legion for nearly four decades. In 1961, however, the State of Maryland obtained ownership of the cross, due to its location within a war memorial park and next to busy highways. In 2015, the American Humanist Association (among others) challenged the constitutionality of the Peace Cross, claiming that it violates the Establishment Clause of the First Amendment.

Justice Alito, writing for a 7:2 majority, answers that it does not. Alito looks to the history behind the cross’ construction, its purpose today, the messages it conveys, and the practical effects that would result from taking it down. Notably, he does not use the three-pronged Lemon test set out in Lemon v. Kurtzman in 1971 to adjudge Establishment Clause cases, effectively teeing up its demise in a future case. Chief Justice Roberts and Justices Breyer and Kavanaugh (both of whom filed concurring opinions) joined Alito’s majority opinion in full. Justice Kagan joined the majority except as to Alito’s discussion of the Lemon test, and also entered a concurrence in part. Justices Thomas and Gorsuch both filed opinions concurring in the judgment. Only Justice Ginsburg, with whom Justice Sotomayor joined, dissented from the ruling.

You can get an in-depth look at the Court’s opinion and all the concurrences and dissents at my Blockbuster Review No. 5.

PDR Network, LLC v. Carlton & Harris Chiropractic, Inc.
The final case decided on Thursday concerns the confluence of two federal statutes: the 1991 Telephone Consumer Protection Act (47 U.S.C. §227 et seq.) (the “Telephone Act”) and the 1946 Administrative Orders Review Act (28 U.S.C. §2342 et seq.) (the Hobbs Act). As relevant, the Telephone Act prohibits in most cases the sending of an “unsolicited advertisement” via fax; the Hobbs Act—on a completely unrelated note—gives the federal courts of appeals “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of” certain “final orders of the Federal Communication Commission” (FCC). Here’s where the two mesh in this case: In 2006, the FCC issued an order stating that “unsolicited advertisement” in the Telephone Act includes faxes that “promote goods or services even at no cost,” including “free magazine subscriptions” and “catalogs.” In 2013, Carlton & Harris Chiropractic sued PDR Network for violating the FCC’s order, but the district court dismissed the suit on the ground that PDR Network had not faxed an “unsolicited advertisement” under the Telephone Act. On appeal, the Fourth Circuit Court of Appeals vacated the ruling, citing its “exclusive jurisdiction” over violations of FCC orders under the Hobbs Act. The question before the Court was whether a district court must abide by the FCC’s 2006 order expanding “unsolicited advertisements”, since only the federal appeals courts have jurisdiction to work outside the bounds of an FCC order under the Hobbs Act.

Justice Breyer—along with Chief Justice Roberts and Justices Ginsburg, Sotomayor, and Kagan—”found it difficult to answer this question” (yes, you read that right), and consequently vacates the Fourth Circuit’s ruling and remanded the case. To answer that question definitively, Breyer writes, the appeals court needs to resolve “two preliminary issues.” First, “[w]hat is the legal nature of the 2006 FCC Order?” That is, is it comparable to a “legislative rule,” which has the “force and effect of law” (emphasis added)? Or is it merely an “interpretive rule,” which does not have the “force and effect of law” (emphasis added)? And second, did PDR Network “have a ‘prior’ and ‘adequate’ opportunity to seek judicial review of the [2006 FCC] Order” under the Administrative Procedure Act (APA)?

Justice Thomas concurred in the judgment—to vacate and remand—and was joined by Justice Gorsuch. Instead of looking at the Fourth Circuit’s ruling with questioning skepticism—as Breyer does—Thomas glares unapprovingly as a “misinterpret[ation] [of] the Hobbs Act,” as Justice Kavanaugh would hold (more on that below). Under this conclusion, however, Thomas would likewise vacate and remand the case, so he joins the majority’s disposition.

Justice Kavanaugh, joined by Justices Thomas, Alito, and Gorsuch, similarly concurred in the judgment. In a nineteen-page opinion (more than three times the length of Breyer’s majority opinion), Kavanaugh would not wait for the Fourth Circuit to answer the majority’s two questions and would instead decide the case at this iteration. Citing the “general rule of administrative law,” his proof is straightforward:

  1. “[I]n an enforcement action, a defendant may argue [before the District Court] that an agency’s interpretation of a statute [like the FCC’s 2006 order interpreting the Telephone Act] is wrong, unless Congress has expressly precluded the defendant from advancing such an argument.”
  2. “The Hobbs Act does not expressly preclude judicial review of an agency’s statutory interpretation in an enforcement action” (emphasis added).
  3. “Therefore, in this enforcement action, PDR [Network] may argue to the District Court that the FCC’s interpretation of the [Telephone Act] is wrong.” ~QED

Thus, in Kavanaugh’s mind, the federal district court is not bound by the FCC’s interpretation of the Telephone Act (contra the Fourth Circuit), and the Fourth Circuit therefore erred in saying so.


In addition, the Court met for its weekly private conference (the final scheduled conference of the term), at which it routinely reviews the petitions on its docket and decides whether to grant certiorari for any of them. We can expect news from this conference in the Court’s Orders list on Monday, June 24. Some high profile petitions awaiting action on Court’s docket include:

  • A trio of cases concerning the Department of Homeland Security (DHS)’s push to whittle away at the Deferred Action for Childhood Arrivals (DACA) policy. The cases ask whether DHS’ decision to bring DACA to an end is judicially reviewable, and if so, whether it is lawful. The cases are DHS v. Regents of the University of CaliforniaTrump v. NAACP, and McAleenan v. Vidal.
  • A Fourth Amendment search and seizure case asking (1) whether a dog-sniff in the common area of an apartment constitutes a search, and (2) if not, whether the good-faith exception to the exclusionary rule (which holds that evidence obtained illegally is inadmissible) applies. The case is Illinois v. Bonilla.
Friday

The Court released another four opinions on Friday.

Flowers v. Mississippi
First, in Flowers v. Mississippi, the Court confronted the case of Curtis Flowers, a black man who has been tried six separate times for a 1996 quadruple murder in Winona, Mississippi. In what is his first high-profile majority opinion for the Supreme Court, Justice Kavanaugh for a 7:2 majority threw out Flowers’ most recent conviction for the murders, concluding that the state prosecutor at Flowers’ trial engaged in racially-motivated prosecutorial misconduct by striking a black female from the jury pool. Chief Justice Roberts and Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan constituted the rest of the majority.

In Flowers’ first two trials, the state prosecutor—who has tried Flowers all six times—struck each black veniremember during jury selection. Consequently, the Supreme Court of Mississippi threw out Flowers’ first two convictions, citing prosecutorial misconduct. At Flowers’ third trial, the State again used all of its fifteen peremptory strikes on the fifteen black potential jurors, resulting in another reversed conviction. At Flowers’ fourth trial, the State once again struck all eleven black veniremembers, and the jury declared a mistrial. The jury found the same at the fifth trial, for which there was no racial data for jury selection. At Flowers’ sixth and most recent trial, the State struck five of the six black prospective jurors, and the jury convicted Flowers and sentenced him to death. This time, the Supreme Court of Mississippi upheld his conviction in a splintered 5:4 decision, and the trial court concluded that the State’s peremptory strikes this time around were not motivated by racial discrimination.

But Justice Kavanaugh reversed. Citing Batson v. Kentucky (1986), Kavanaugh begins his opinion by declaring that “a State may not discriminate on the basis of race when exercising peremptory challenges against prospective jurors in a criminal trial.” Mississippi did that here, he concludes, for four reasons.

First, in Flowers’ six trials combined, Mississippi used its peremptory challenges “to strike 41 of the 42 black prospective jurors that it could have struck—a statistic that the State acknowledged at oral argument” (see p. 32). Second, in Flowers’ sixth, most recent trial, “the State exercised peremptory strikes against five of the six black prospective jurors.” Third, at Flowers’ most recent trial, “the State engaged in dramatically disparate questioning of black and white prospective jurors” in what “apparent[ly]” was an “effort to find pretextual reasons to strike black prospective jurors.” Statistically speaking, the State asked the five struck black veniremembers 145 questions (29 per juror), but asked the eleven white veniremembers only twelve questions (just over one per juror). And fourth, Mississippi “engaged in disparate treatment of black and white prospective jurors, in particular by striking black prospective juror Carolyn Wright.”

For these reasons, Kavanaugh overturned Flowers’ most recent conviction. He reiterates, however, that the Court “break[s] no new legal ground” in coming to this conclusion. “[A]ll that we . . . decide,” he stresses, “is that all of the relevant facts and circumstances taken together establish that the trial court at Flowers’ sixth trial committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not motivated in substantial part by discriminatory content.” He concludes that the Court “simply enforce[s] and reinforce[s] Batson by applying it to the extraordinary facts of this case.” Therefore, Flowers’ sixth conviction is reversed, and his case is remanded back to the Mississippi trial court.

Justice Alito pens a two-page concurrence, again highlighting the “highly unusual” nature of Flowers’ case. In an “ordinary” case, Alito would have “no trouble affirming the decision of the Supreme Court of Mississippi, which conscientiously applied the legal standards applicable in less unusual cases.” But Flowers’ case is “not ordinary,” and thus Alito concurs.

Finally, Justice Thomas authored a 46-page dissent, parts of which Justice Gorsuch joined.  Thomas attacks Kavanaugh’s majority opinion, asserting that the “only clear errors in this case are committed by today’s majority.” He claims “the Court almost entirely ignores—and certainly does not refute—the race-neutral reasons given by the State for striking [Carolyn] Wright and four other black prospective jurors.” In addition, Thomas views “49 of the State’s 50 peremptory strikes in Flowers’ previous trials” as “race-neutral.” And in a particularly biting conclusion, Thomas declares:

If the Court’s opinion today has a redeeming quality, it is this: The State is perfectly free to convict Curtis Flowers again. Otherwise, the opinion distorts our legal standards, ignores the record, and reflects utter disrespect for the careful analysis of the Mississippi courts. Any competent prosecutor would have exercised the same strikes as the State did in this trial. And although the Court’s opinion might boost its self-esteem, it also needlessly prolongs the suffering of four victims’ families.

North Carolina Dep’t. of Revenue v. Kimberley Rice Kaestner 1992 Family Trust
(Note: Please, forgive me if my discussion here sounds overly technical, dry, curt, or perhaps even incorrect. It’s late, and my undergraduate, non-law-school brain is not well-equipped to handle convoluted tax/banking/trust law cases at this hour. But at any rate, knock yourself out.) The second opinion on Friday comes from a unanimous Court in North Carolina Dep’t. of Revenue v. Kaestner. Justice Sotomayor held that simply being an in-state beneficiary of a trust fund does not permit that State to tax one’s income from that trust, (1) which has not yet been distributed to the in-state beneficiary, (2) from which the in-state beneficiary does not have a right to demand money yet, and (3) which the in-state beneficiary is uncertain to receive.

Sotomayor begins by explaining that Kaestner concerns “the limits of a State’s power to tax a trust.” The State of North Carolina taxes any income earned from a trust that “is for the benefit of” a North Carolina resident. North Carolina interpreted this law to say, in Sotomayor’s words, that “a trust owes income tax to North Carolina whenever the trust’s beneficiaries live in the State.” However, to the State this holds true “even if—as is the case here—those beneficiaries received no income from the trust in the relevant tax year, had no right to demand income from the trust in that year, and could not count on ever receiving income from the trust.” As common sense might suggest—and as the state courts below concluded—this violates the Due Process Clause of the Fourteenth Amendment, and Sotomayor agrees and affirms. Justice Alito, joined by Chief Justice Roberts and Justice Gorsuch, concurred, agreeing that North Carolina’s stated “connection to the income earned by trust” is “tenuous” and “insufficient to permit the State to tax the trust’s income” under the Fourteenth Amendment. Alito simply wants to point out that the Court’s opinion “does not change the governing standard” for similar cases, “nor does it alter the reasoning applied in our earlier cases.”

Rehaif v. United States
The penultimate decision from the Court this week comes in Rehaif v. United States, a statutory interpretation case involving illegal immigrants. Hamid Rehaif traveled to the United States on a nonimmigrant student visa and attended classes at a university, but was dismissed for lackluster grades and did not immediately re-enroll at a different university. Sometime after his dismissal, he shot two firearms at a local firing range. He was promptly charged under federal law (18 U.S.C. §922(g)) for illegally possessing a firearm. Rehaif was also charged under §924(a)(2), which provides that any person who “knowingly” is in the country illegally and is convicted under §922(g) may face a prison sentence of up to ten years. The question before the Court was whether Rehaif had to know he was in the country illegally—and thus was declining to leave—to be charged under §924(a)(2) and subject to a longer prison sentence.

Justice Breyer, writing for a 7:2 majority, answered “yes.” He was joined by Chief Justice Roberts and Justices Ginsburg, Sotomayor, Kagan, Gorsuch, and Kavanaugh. Breyer first cites Congress’ “longstanding” intent to “require a defendant to possess a culpable mental state regarding ‘each of the statutory elements that criminalize otherwise innocent conduct'” (quoting United States v. X-Citement VideoInc. (1994)). Second, the plain text of §924(a)(2) dictates that “‘[w]hoever knowingly violates’ certain subsections of §922, including §922(g), ‘shall be’ subject to penalties of up to 10 years’ imprisonment” (emphasis added). In turn, Breyer continues, “[t]he text of §922(g) . . . provides that it ‘shall be unlawful for any person . . . , being an alien . . . illegally or unlawfully in the United States,’ to ‘possess in or affecting commerce, any firearm or ammunition.'” Thus, “the word ‘knowingly’ applies both to the defendant’s conduct and to the defendant’s stauts.” “To convict a defendant,” Breyer concludes, “the Government must therefore show that the defendant knew he possessed a firearm and also that he knew he had the relevant [illegal] status when he possessed it.”

Justice Alito, who was joined by Justice Thomas, dissented. After first claiming that the Court’s majority opinion “casually overturns the long-established interpretation of an important criminal statute,” Alito turns to what he sees as the real-world fallout of the opinion. For example, he worries “[t]oday’s decision will make it significantly harder to convict persons falling into some of these categories,” and that it “will create a mountain of problems with respect to the thousands of prisoners currently serving terms for §922(g) convictions.” Specifically, Alito submits in his conclusion that the majority “opens the gates to a flood of litigation that is sure to burden the lower courts with claims for relief in a host of cases where there is no basis for doubting the defendant’s knowledge.”

Knick v. Township of Scott, Pennsylvania
The twelfth and final decision of the week comes from a divided 5:4 Court in Knick v. Township of Scott, Pennsylvania. The Fifth Amendment’s Takings Clause provides that one’s private property “shall [not] be taken for public use, without just compensation.” In other words, if the government wants to obtain a piece of your land to use for a public project (e.g., take a piece of your backyard to widen a state highway), it must compensate you for it. The question in Knick concerns whether you must proceed through state courts to litigate a claim that the government violated your Takings Clause rights (a “§1983 claim” under 42 U.S.C. §1983before you may file in federal court.

In Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City (1985), the Court answered “yes,” holding that you cannot file a §1983 claim in federal court and allege that a State has violated the Takings Clause until the state court has denied your claim under state law. But Chief Justice Roberts—along with Justices Thomas, Alito, Gorsuch, and Kavanaugh—overturned Williamson County and held the opposite: A State violates the Takings Clause when it takes your property without compensation, and you may then bring a §1983 claim in federal court without first going through state courts.

One reason Roberts offers for this conclusion is the Court’s 2005 decision in San Remo Hotel, L. P. v. City & County of San Francisco. In San Remo Hotel, the Court held that a “state court’s resolution of a claim for just compensation under state law generally has preclusive effect in any subsequent federal suit.” Thus, Roberts explains, the “takings plaintiff . . . finds himself in a Catch-22: He cannot go to federal court without going to state court first; but if he goes to state court and loses, his claim will be barred in federal court.” So, Roberts deduces, his §1983 claim in federal court “dies aborning.”

Second, the 1871 Civil Rights Act provides for “a federal forum for claims of unconstitutional treatment at the hands of state officials.” The “settled rule” under Heck v. Humphrey (1994), Roberts continues, is that “exhaustion of state remedies ‘is not a prerequisite to an action under §1983′” (quoting Patsy v. Board of Regents of the State of Florida (1982)). But the Civil Rights Act’s guarantee “rings hollow for the takings plaintiff,” who under Williamson County and San Remo Hotel are stuck between a rock and a hard place and forced to litigate their takings claims in state courts. For these reasons, Roberts concludes, Williamson County‘s state-litigation requirement is overruled, and “[a] property owner may bring a takings claim [in federal court] under §1983 upon the taking of his property without just compensation by a local government.”

Justice Thomas wrote a brief, two-page concurrence in which he agrees “in full” with Roberts’ majority opinion. He states that the majority “correctly interprets th[e] text [of the Takings Clause] by holding that a violation of this Clause occurs as soon as the government takes property without paying for it.” Thomas simply wants to point out that the Court’s opinion “do[es] not . . . foreclose the application of ordinary remedial principles to takings claims and related common-law tort claims, such as trespass.”

In a nineteen-page dissent, Justice Kagan—along with Justices Ginsburg, Breyer, and Sotomayor—submits that the majority opinion upends “precedent after precedent” and an “understanding of the Fifth Amendment’s Takings Clause [that] stretche[s] back to the late 1800s.” Kagan argues that the Court ushers “a mass of quintessentially local cases involving complex state-law issues into federal courts,” and, of course, that it “transgresses all usual principles of stare decisis.” On this point, Kagan refers us back to Franchise Tax Board of California v. Hyatt, the state sovereign immunity case decided a few months ago (and on which I wrote my Blockbuster Review No. 3). There, the Court overruled another longstanding precedent, and Justice Breyer in his dissent concluded that “[t]oday’s decision can only cause one to wonder which cases the Court will overrule next.” “Well,” Kagan writes here in Knick, “that didn’t take long. Now one may wonder yet again.”

The Week Ahead

Next week is the last of October Term 2018. All cases will be decided by the end of the day on Friday.

On Monday, the Court at 9:30am EDT will release orders from this past Thursday’s private conference. The Court will release opinions at 10:00am. Assuming the Court does not release all twelve of its remaining decisions on Monday, there will be more opinions throughout the week. Last term, for instance, the Court released opinions on Monday, Tuesday, and Wednesday of the term’s final week.

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